Citation Nr: 0805797
Decision Date: 02/20/08 Archive Date: 03/03/08
DOCKET NO. 02-02 215 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to an increased rating for residuals of right
hand injury, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Barbara J. Cook and Wade R.
Bosley, Attorneys
WITNESSES AT HEARING ON APPEAL
The veteran and D.F.
ATTORNEY FOR THE BOARD
C. Palmer, Associate Counsel
INTRODUCTION
The veteran had active service from November 1968 to November
1972. He also served in the Army National Guard from April
1982 to April 1983, with periods of active duty for training.
This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from a May 2001 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Indianapolis, Indiana.
The Board notes the veteran's claim for entitlement to a
rating higher than 10 percent for residuals of a hand injury
was previously denied in a July 2005 Board decision; a
separate 10 percent rating for limitation in functional use
of the middle finger was also awarded at that time. The
veteran appealed the decision to the U.S. Court of Appeals
for Veterans Claims (Court) and, the veteran, through his
representative, and the Secretary of Veterans Affairs (the
parties) submitted a Joint Motion for Remand in December
2006. In a December 2006 Order, the Court granted the
motion, vacated the July 2005 Board decision that denied the
veteran's increased rating claim for residuals of a right
hand injury, and remanded the case to the Board for
compliance with the instructions in the joint motion. It is
noted that the parties wrote that they did not wish to
disturb the portion of the Board's decision that held that
limitation of functional use of the middle finger warranted a
separate 10 percent rating under Diagnostic Code 5229.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
After careful review of the record, the Board finds that a
remand for additional notification and development is
necessary before proceeding to evaluate the merits of the
veteran's claim.
The Board notes that additional medical evidence has been
received since the last VA examination in February 2005 that
may suggest that the veteran's right hand disability has
increased in severity. Indeed, the veteran's representative
submitted correspondence in March 2007 along with VA
treatment records dated from January 2007 to March 2007 and
noted that the veteran complained of pain in his right hand
on numerous occasions during that time. The veteran's
representative specifically referenced the treatment records
wherein the veteran's physical therapist wrote that the
veteran's right hand pain was due to an "old crush injury"
and noted that the veteran demonstrated "increased
contraction of his right hand." The Board further observes
that a March 2006 treatment record reveals that the veteran
demonstrated difficulty holding a towel in his right hand at
that time.
However, it is also noted that the veteran's representative
stated that the veteran unfortunately suffered a stroke
during the course of this appeal and the VA treatment records
indicate that the veteran has suffered multiple strokes since
February 2006. Upon review of the treatment records, it is
unclear whether and to what extent the veteran's current
complaints pertaining to the right hand are related to his
service-connected residuals of a right hand injury or are
residuals of his strokes as a treatment record dated January
30, 2007 notes that the veteran has residual left sided
weakness due to his stroke and a treatment record dated
February 2, 2007 notes that the veteran has right side
weakness due to his stroke. While the veteran's physical
therapist is noted to have indicated that the veteran's right
hand pain was attributable to his service-connected right
hand disability, it is clear that the veteran's complex
medical condition requires a greater level of specialized
medical expertise in determining the etiology of the
veteran's right hand symptoms. In light of the foregoing,
the Board finds that a remand for further examination by an
orthopedist and neurologist is necessary in order to
determine the current nature and severity of the veteran's
service-connected right hand disability.
The record also reflects that the veteran through his
representative filed a notice of disagreement (NOD) in
February 2006 with respect to the initial rating assigned for
the veteran's service-connected right wrist disability in the
March 2005 rating decision that granted service connection
for the claim. The February 2006 NOD was received by the RO
within a year of the March 2005 rating decision, and is,
thus, timely. 38 U.S.C.A. § 7105 (West 2002). As a timely
NOD regarding the above issue has been submitted, a remand is
required in order for the RO to provide the veteran a
statement of the case. See Manlincon v. West, 12 Vet. App.
238 (1999) (holding the Board should remand the issue to the
RO for the issuance of a statement of the case when a notice
of disagreement has been timely filed); 38 U.S.C.A. §
7105(d)(1) (West 2002). Thereafter, the veteran must submit
a timely substantive appeal in order for this issue to be
perfected for appeal to the Board. 38 U.S.C.A. § 7105 (West
2002).
Accordingly, the case is REMANDED for the following actions:
1. Please send the veteran VCAA notice
under 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) with respect to his increased
rating claim, to include the guidelines
outlined by the Court in Vazquez-Flores v.
Peake, No. 05-355 (U.S. Vet. App. Jan. 30,
2008. The notice should include the
following: (1) the claimant must provide,
or ask the Secretary to obtain, medical or
lay evidence demonstrating a worsening or
increase in severity of the disability and
the effect that worsening has on the
claimant's employment and daily life; (2)
if the Diagnostic Code (DC) under which the
claimant is rated contains criteria
necessary for entitlement to a higher
disability rating that would not be
satisfied by the claimant demonstrating a
noticeable worsening or increase in
severity of the disability and the effect
of that worsening has on the claimant's
employment and daily life (such as a
specific measurement or test result), the
Secretary must provide at least general
notice of that requirement to the claimant;
(3) the claimant must be notified that,
should an increase in disability be found,
a disability rating will be determined by
applying relevant DCs, which typically
provide for a range in severity of a
particular disability from 0% to as much as
100% (depending on the disability
involved), based on the nature of the
symptoms of the condition for which
disability compensation is being sought,
their severity and duration, and their
impact upon employment and daily life; and
(4) the notice must provide examples of the
types of medical and lay evidence that the
claimant may submit (or ask the Secretary
to obtain) that are relevant to
establishing entitlement to increased
compensation-e.g., competent lay statements
describing symptoms, medical and
hospitalization records, medical
statements, employer statements, job
application rejections, and any other
evidence showing an increase in the
disability or exceptional circumstances
relating to the disability.
2. The RO should obtain all outstanding VA
treatment records pertaining to any
treatment the veteran received for his
right hand from May 2005 to the present and
associate them with the claims folder. If
no treatment records are available, such
should be noted for the record.
3. Thereafter, the RO should arrange for
the veteran to be afforded with VA
examination by an orthopedist and
neurologist to determine the current
nature and severity of the veteran's
service-connected residuals of a right
hand injury. The claims folder must be
made available to and reviewed by the
examiners. Any indicated studies should
be performed.
All symptomatology due to the service-
connected right hand disability should be
thoroughly described. In reporting the
results of all range of motion testing,
the examiners should identify any
objective evidence of pain and the
specific excursion(s) of motion, if any,
accompanied by pain. The examiners should
specifically express an opinion as to
whether the veteran's right hand
disability is productive of a gap between
the thumb pad and the fingers, with the
thumb attempting to oppose the fingers,
and state the distance of any such gap.
To the extent possible, the examiners
should assess the degree of severity of
any pain.
Tests of joint movement against varying
resistance should be performed. The extent
of any incoordination, weakened movement
and excess fatigability on use should also
be described by the examiners. If
feasible, the examiners should assess the
additional functional impairment due to
weakened movement, excess fatigability, or
incoordination in terms of the degree of
additional range of motion loss as well as
in terms of the increased distance in gap
between the thumb pad and the fingers,
with the thumb attempting to oppose the
fingers.
The examining physicians should express an
opinion concerning whether there would be
additional limitation of functional
ability on repeated use or during flare-
ups (if the veteran describes flare-ups),
and, to the extent possible, provide an
assessment of the functional impairment on
repeated use or during flare-ups. If
feasible, the examiner should assess the
additional functional impairment on
repeated use or during flare-ups in terms
of the degree of additional range of
motion loss and in terms of the increased
distance in gap between the thumb pad and
the fingers, with the thumb attempting to
oppose the fingers.
The examining physicians should provide an
opinion on whether the veteran has lost
use of his right hand. If it is
determined that the veteran has lost use
of his right hand, the examining
physicians should state an opinion as to
when the veteran's loss of use of his
right hand began.
The examining physicians should also state
whether, and to what extent, any
symptomatology shown on examination is
related to the veteran's service-connected
residuals of a right hand injury. If it
is not possible to differentiate between
symptomatology attributable to the
veteran's service-connected right hand
disability and other disorders suffered by
the veteran, please so state in the
examination report.
The examining physicians should provide an
opinion concerning the impact of the
veteran's service-connected right hand
disability on his ability to work.
The rationale for all opinions expressed
should be provided. Please send the
claims folder to the examiners for review
in conjunction with the examination.
4. After any additional notification
and/or development that the RO deems
necessary is undertaken, the veteran's
right hand claim should be readjudicated.
If any benefit sought on appeal remains
denied, the veteran and his
representatives should be provided with a
supplemental statement of the case that
contains notice of all relevant actions
taken, including a summary of the evidence
and applicable law and regulations
considered pertinent to the issues. An
appropriate period of time should be
allowed for response by the veteran and
his representatives. Thereafter, the case
should be returned to the Board for
further appellate consideration, if in
order.
5. The RO should also issue the veteran a
statement of the case with respect to his
claim for entitlement to a higher initial
rating for service-connected degenerative
changes of the right wrist, to include
notification of the need and the
appropriate time period in which to file a
substantive appeal. (The RO should note
that the veteran through his
representative also requested a DRO
hearing on the issue in the February 2006
NOD.) If a timely substantive appeal is
filed, this issue should be returned to
the Board for appellate review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).